SAMPLE TRIAL ADVOCACY ARTICLE FROM
TRIAL THEATER.COM!
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“Did You See What Happened?”
BUILD CREDIBILITY BY ESTABLISHING THE WITNESS’S VANTAGE POINT
By Elliott Wilcox
■ “Does he have any interest in the
outcome of this trial?” “I saw the defendant sitting at the table. Suddenly, he reached over to the next table,
grabbed the salt shaker, and threw it at the
stage. The shaker hit the lead singer in the
left eye, who screamed and fell off the stage,
holding his eye.”
And that’s before he’s even crossexamined! Why do they have so
many questions? Because
you didn’t take the time to
establish the witness’s
vantage point - his ability
to see, hear, or know the
things about which he
testified. If you were trying to prove that the
defendant had hit your client with a
salt shaker, would this be enough
proof ? Or would the jury have some
doubts about the testimony? If this
were the only testimony the jury
heard, consider the questions they
might have about the testimony:
■ “Why should we believe him?”
■ “How do we know he saw what he
says he saw?”
■ “Where was he located when he
saw the shaker thrown?”
■ “What is his ability to remember or
recollect the events?”
■ “Why was he paying attention to
the defendant rather than watching
the stage?”
■ “What was the lighting like? How
much could he see?
■ “Is there any history between the
witness and the defendant?”
■ “Were there any obstructions
between the witness and the
defendant?”
■ “How close or far away was he
when the shaker was thrown?”
Consider a situation where
a single event would
generate thousands of
vantage points:
Show them why your witness had a clear view of events
It’s the playoffs and you’re watching
your favorite football team. If they
win this game, you’re going to the
Super Bowl. Your team is trailing by
five points, there are two seconds left,
and this is the final play of the game. After hiking the ball, the quarterback
dodges a tackler. He scrambles,
hoping to find an open receiver. Looking downfield, he lets loose and
throws a 60 yard bomb. Your star
receiver breaks free into the end zone
and leaps higher than he’s ever leaped
before. Reaching out while in flight,
he makes a perfect, one-handed catch! But then, you see the referee. He’s
waving his arms and signaling that the
receiver caught the ball out of
bounds. The game is over - your arch
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To best tell our
witness’s story, we
need to show why
they have the ability
to see, hear, or know
the things they’re
testifying about.
SAMPLE TRIAL ADVOCACY ARTICLE FROM
TRIAL THEATER.COM!
PAGE
2
rivals have won, and they’re going to the Super
Bowl. You and 65,000 other fans in the stadium
erupt with rage. “You’re blind, you rotten ref !” is the
nicest comment you hear. ■
■
■
■
But a moment later, watching the replay on the
Jumbo-Tron, you see the receiver’s left foot land on
the white stripe. The referee was right - the receiver
was out of bounds when he came down with the ball. By highlighting his ability to observe before asking
him what he saw, the jury can place greater weight
on his testimony. In your case, consider the strength
of your witness’s vantage point. Does the witness
have any special skills that helped them view,
remember, or interpret the event? Does the witness
have any special training, perceptive skills,
knowledge, experience, or unique skills that allow
them to see these events better than the ordinary
person? If so, teach the jury about those skills before
you ask him what he saw, and the jurors will
understand why they should believe your witness. ◾
Unfortunately, in trial, we never get the benefits of
an instant replay. To best tell our witness’s story, we
need to show why they have the ability to see, hear,
or know the things they’re testifying about. If you
were telling this same story to the jury, you wouldn’t
start by having the referee describe what he saw to
the jury. You’d start by showing that the referee was
in the best position and had the best ability to see
what happened. Here are some of the things you’d
want to establish before he told the jury about the
catch:
■ What is his ability to see? 20/20 vision?
■ How close was he to the action? ■ Where is he trained to position himself on the
playing field? ■ What is he trained to look for? Why is it important that he follow his training? Where was he positioned? Were any other players in his way? Where was his attention focused?
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